SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Eileen Nadelson, J.), entered December 3, 2004. The order, insofar as appealed from as limited by the brief, granted plaintiff’s motion for summary judgment.

Order, insofar as appealed from, reversed without costs and plaintiff’s motion for summary judgment denied.

In an action to recover assigned first-party no-fault benefits, a plaintiff generally establishes its prima facie entitlement to summary judgment by proof of the submission of a statutory claim form, setting forth the fact and the amount of the loss sustained,
and that payment of no-fault benefits is overdue (see e.g. Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med. Supply v
Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). In the instant case, the denial of claim form (NF-10) annexed to plaintiff’s moving papers was sufficient to establish that plaintiff’s claims were submitted to and received by defendant (see Careplus Med. Supply Inc. v State-Wide Ins. Co., 11 Misc 3d 29 [App Term, 2d & 11th Jud Dists 2005]). To the extent defendant claims that plaintiff failed to make a prima facie showing that plaintiff’s claims were overdue because the NF-10 issued by defendant and annexed to plaintiff’s moving papers indicated that plaintiff’s claims were denied 10 days after defendant received the claims, such an argument lacks merit (see Insurance Law 5106 [a]). [*2]

In opposition to plaintiff’s motion seeking summary judgment, defendant argued that plaintiff was not entitled to summary judgment because the collision was in furtherance of an insurance fraud scheme. We find that the affidavit of defendant’s investigator was sufficient to demonstrate that the defense was based upon a “founded belief that the alleged injur[ies] do[] not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). Since defendant raised a triable issue of fact as to whether there was a lack of coverage, plaintiff was not entitled to summary judgment (see id.; Zuckerman v City of New York, 49 NY2d 557 [1980]).

In addition, defendant also asserted that plaintiff was not entitled to summary judgment since there was an issue of fact as to whether plaintiff was ineligible for reimbursement of no-fault benefits because plaintiff was alleged to be a fraudulently incorporated medical provider. It is well settled that fraudulently incorporated medical corporations are not entitled to reimbursement of no-fault benefits (State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]; Allstate Ins. Co. v Belt Parkway Imaging, P.C., 33 AD3d 407 [2006]; Metroscan Imaging, P.C. v GEICO Ins. Co., 13 Misc 3d 35 [App Term, 2d & 11th Jud Dists 2006]). In light of the foregoing, defendant’s opposition papers were sufficient to raise an issue of fact as to whether plaintiff was entitled to reimbursement of no-fault benefits (see Crossbay Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., ___ Misc 3d ___, 2007 NY Slip Op 27135 [App Term, 2d & 11th Jud Dists]; Midwood Acupuncture, P.C. v State Farm Ins. Co., 14 Misc 3d 131[A], 2007 NY Slip Op 50052[U] [App Term, 2d & 11th Jud Dists]; Lexington Acupuncture, P.C. v State Farm Ins. Co., 12 Misc 3d 90 [App Term, 2d & 11th Jud Dists 2006]).

Pesce, P.J., and Rios, J., concur.

Golia, J., concurs in a separate memorandum.
SUPREME COURT OF THE STATE OF NEW YORK,
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT : PESCE, P.J., GOLIA and RIOS, JJ.
VA ACUTHERAPY ACUPUNCTURE, P.C.
a/a/o ANTONIO ARAVJO,

Respondent, [*3]

-against-
STATE FARM INS. CO.,

Appellant.

Golia, J., concurs with the result only, in the following memorandum:

I am constrained to agree with the ultimate disposition in the decision reached by the majority. I, however, wish to note that I do not agree with certain propositions of law set forth in cases cited therein which are inconsistent with my prior expressed positions and generally contrary to my views.
Decision Date: June 15, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Dolores L. Waltrous, J.), entered January 4, 2006. The order granted plaintiff’s motion for partial summary judgment with respect to the cause of action on behalf of assignor Hypolite Francis and denied defendant’s cross motion for partial summary judgment with respect to the cause of action on behalf of said assignor.

Order reversed without costs and matter remitted to the Civil Court, Kings County and held in abeyance for a new determination of the motion and cross motion following a prompt application to the Workers’ Compensation Board to determine the parties’ rights under the Workers’ Compensation Law.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for partial summary judgment in the sum of $1,454,98 on the claims submitted with respect to Hypolite Francis and defendant cross-moved for partial summary judgment dismissing those claims, inter alia, on the ground that at the time of the accident, Francis was acting in the course of his employment, requiring that plaintiff pursue its compensation claim before the Workers’ Compensation Board. The court granted plaintiff’s motion for partial summary judgment and denied defendant’s cross motion. Defendant’s appeal ensued. [*2]

We find defendant’s proof, including the police accident report, was sufficient to raise a question of fact as to whether Francis was acting as an employee at the time of the accident, which issue must be resolved by the Workers’ Compensation Board (O’Rourke v Long, 41 NY2d 219, 224 [1976]; Matter of Piku v 24535 Owners Corp., 19 AD3d 722, 723 [2005]; Santigate v Linsalata, 304 AD2d 639, 640 [2003]). Accordingly, the order is reversed and the matter remanded to the court below with the direction that the court hold the matter in abeyance pending a prompt application to the Workers’ Compensation Board for a determination of the parties’ rights under the Workers’
Compensation Law (Botwinick v Ogden, 59 NY2d 909, 911 [1983]; Acunto v Stewart Ave. Gardens, LLC, 26 AD3d 305, 305 [2006]).
Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: June 8, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Diccia T. Pineda-Kirwan, J.), entered October 24, 2005, deemed an appeal from a judgment entered on December 9, 2005 (see CPLR 5501 [c]). The judgment, entered pursuant to the October 24, 2005 order denying defendant’s motion for summary judgment and granting plaintiff’s cross motion for summary judgment, awarded plaintiff the principal sum of $7,498.62.

Judgment reversed without costs, order entered October 24, 2005 vacated insofar as it granted plaintiff’s cross motion for summary judgment and plaintiff’s cross motion for summary judgment denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing plaintiff’s complaint based upon plaintiff’s assignor’s failure to appear for scheduled independent medical examinations (IMEs). In support of its motion, defendant annexed, inter alia, copies of claim forms, denial of claim forms (NF-10s) and letters scheduling the IMEs. Plaintiff cross-moved for summary judgment. Plaintiff’s cross motion was supported by an affirmation of plaintiff’s counsel and by an affidavit executed by Boris Zigmond, D.C., the “principal doctor” of plaintiff. There were no claim forms or NF-10s [*2]annexed with its cross motion. Rather, Zigmond stated in his affidavit that he was “informed” that the foregoing documents were annexed to defendant’s motion. The court below denied defendant’s motion for summary judgment and granted plaintiff’s cross motion for summary judgment. The instant appeal by defendant ensued.

On appeal, defendant asserts that the affidavit submitted by Zigmond in support of the cross motion, failed to lay a proper foundation for the documents annexed to defendant’s moving papers and that, as a result, plaintiff failed to establish a prima facie case. The affidavit submitted by Zigmond was insufficient to establish that he possessed sufficient personal knowledge so as to lay a foundation for the admission, as
business records, of the documents upon which plaintiff relied. Accordingly, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (see Bath Med. Supply, Inc. v Deerbrook Ins. Co., 14 Misc 3d 135[A], 2007 NY Slip Op 50179[U] [App Term, 2d & 11th Jud Dists]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Consequently, plaintiff’s cross motion for summary judgment should have been denied.

With respect to defendant’s motion based upon the assignor’s failure to appear for scheduled IMEs, the affidavit submitted by defendant in support of its motion was insufficient to establish the mailing of the IME notices and the assignor’s nonappearance at the IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]). To the extent defendant also sought dismissal of some of plaintiff’s claims on the ground that the fees charged were not in conformity with the Workers’ Compensation fee schedule, defendant did not proffer sufficient evidence to establish as a matter of law that said claims reflected the incorrect amount for the services provided (see Abraham v Country-Wide Ins. Co., 3 Misc 3d 130[A], 2004 NY Slip Op
50388[U] [App Term, 2d & 11th Jud Dists]). Accordingly, the court below properly denied defendant’s motion for summary judgment.

Pesce, P.J., and Rios, J., concur.

Golia, J., concurs in a separate memorandum.
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT : PESCE, P.J., GOLIA and RIOS, JJ.
TRIBORO CHIROPRACTIC AND ACUPUNCTURE, PLLC
a/a/o CRYSTAL WILLIAMS,

Respondent,

-against- [*3]
NEW YORK CENTRAL MUTUAL
FIRE INSURANCE COMPANY,

Appellant.

Golia, J., concurs with the result only, in the following memorandum:

I am constrained to agree with the ultimate disposition in the decision reached by the majority. I, however, wish to note that I do not agree with certain propositions of law set forth in cases cited therein which are inconsistent with my prior expressed positions and generally contrary to my views.
Decision Date: June 8, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Nassau County, First District (Sharon M.J. Gianelli, J.), dated April 5, 2006. The order, insofar as appealed from as limited by the brief, granted defendant’s cross motion for summary judgment dismissing the complaint.

Order, insofar as appealed from, reversed without costs and defendant’s cross motion for summary judgment dismissing the complaint denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant cross-moved for summary judgment
on the grounds, inter alia, that plaintiff was ineligible for reimbursement of no-fault benefits, citing State Farm Mut. Auto. Ins. Co. v Mallella (4 NY3d 313 [2005]), and that plaintiff lacked standing to sue because it sold its right to collect upon the bills at issue. The court denied plaintiff’s motion for summary judgment and granted defendant’s cross motion, holding that defendant proffered “sufficient evidence that plaintiff is not wholly owned by licensed health care providers as required by Business Corporations [sic] Law § 1503 (b) and § 1507.” Plaintiff appeals, as limited by its brief, from so much of the order as granted defendant’s cross motion for summary judgment.

In support of its cross motion, defendant submitted an unverified complaint and exhibits annexed thereto filed by, among others, plaintiff in an action it commenced in the Supreme [*2]Court, Kings County wherein plaintiff alleged that it entered into a contract to sell accounts receivable. In further support of its cross motion, defendant proffered an affidavit submitted in the Supreme Court action in which the affiant swore that plaintiff agreed to sell its accounts receivable. However, these documents are not dispositive of this action since they constitute informal judicial admissions which are “evidence of the fact or facts admitted . . . the circumstances of which may be explained at trial” (Baje Realty Corp. v Cutler, 32 AD3d 307, 310 [2006] [citations and internal
quotation marks omitted]; see also Matter of Union Indem. Ins. Co. of N.Y., 89 NY2d 94, 103 [1996]). Upon this motion, the record does not establish that plaintiff sold the right to recover upon the claims which are at issue in this action.

To the extent defendant asserts that plaintiff is ineligible for reimbursement of no-fault benefits (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313, supra), the record does not, at this juncture, support such a determination. Indeed, the unsigned transcript of the testimony given by plaintiff’s principal at an examination under oath in connection with a claim made by a different medical corporation owned by said principal was insufficient to establish, as a matter of law, that plaintiff is owned or controlled by someone other than a licensed medical professional. Similarly, while defendant alleges that plaintiff has channeled the bulk of its profits to a management company and to companies from which it leases its premises and its medical equipment, all of which are related entities, the record lacks sufficient facts to establish the extent to which plaintiff’s profits are being shared. Accordingly, upon this record, it cannot be said, as a matter of law, that plaintiff is ineligible for reimbursement of no-fault benefits (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313, supra). Therefore, defendant’s cross motion for summary judgment dismissing the action should have been denied since questions of fact exist as to whether plaintiff is eligible for reimbursement of no-fault
benefits and, if so, whether plaintiff sold the accounts which were the subject of this action (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Rudolph, P.J., McCabe and Tanenbaum, JJ., concur.
Decision Date: June 7, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Dolores L. Waltrous, J.), entered August 9, 2005, deemed an appeal from a judgment entered on May 8, 2006 (see CPLR 5501 [c]). The judgment, entered pursuant to the August 9, 2005 order granting plaintiff’s motion for summary judgment to the extent of awarding it partial summary judgment on plaintiff’s claims regarding assignors Arsen Manukyan, Tsaruk Sarkisian, Dejan Nikolic, Nunu Dzhgamaia and Tsira Gogadze, awarded plaintiff the sum of $24,157.78.

Judgment reversed without costs, order granting plaintiff’s motion for summary judgment to the extent of awarding it partial summary judgment vacated and plaintiff’s motion for summary judgment is granted to the extent of awarding it partial summary judgment on the $900 and $154.30 claims relating to assignor Dejan Nikolic and, with respect to assignor Arsen Manukyan, upon the $400 claim dated February 19, 2003, the $300 claim dated April 10, 2003 and the $700 claim, and the matter is remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees thereon and for all further proceedings on the remaining claims.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant opposed the motion. The court below granted [*2]plaintiff’s motion for summary judgment to the extent of awarding it partial summary judgment on all of its claims regarding assignors Arsen Manukyan, Tsaruk Sarkisian, Dejan Nikolic, Nunu Dzhgamaia and Tsira Gogadze. The instant appeal by defendant ensued.

Since defendant raised no issue on appeal regarding plaintiff’s establishment of its prima facie case, we do not pass on the propriety of the determination of the court below with respect thereto.

With regard to the motor vehicle accident of May 27, 2002, plaintiff submitted two bills in the amounts of $900 and $154.30 for services provided to assignor Dejan Nikolic. Although defendant denied these claims based upon Nikolic’s alleged failure to appear for scheduled independent medical examinations, defendant did not submit an affidavit from someone with personal knowledge regarding his failure to appear. As a result, defendant failed to raise a triable issue of fact with regard to said claims (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).

With respect to the motor vehicle accident of November 25, 2002, defendant asserted that plaintiff was not entitled to recover upon the bills for services provided to assignors Arsen Manukyan, Tsaruk Sarkisian, Nunu Dzhgamaia and Tsira Gogadze on the ground that the injuries sustained were not causally related to the accident. In support of said defense, defendant submitted an unsworn accident analysis report and, with respect to Arsen Manukyan, annexed a copy of an unsworn peer review report from a chiropractor and an affirmed peer review report from Jacquelin Emmanuel, M.D. The peer review report from the chiropractor as well as the accident analysis report were inadmissible and, as such, could not establish defendant’s defense that the injuries sustained were not causally related to the accident (see Executive MRI Imaging, P.C. v New York Cent. Mut. Fire Ins. Co., 13 Misc 3d 140[A], 2006 NY Slip Op 52250[U] [App Term, 2d & 11th Jud Dists]). In addition, although Dr. Emmanuel’s peer review report was affirmed, it merely concluded that said assignor was not disabled. As a result, said peer review report was insufficient to demonstrate that defendant’s defense of a lack of nexus between the accident and the injuries claimed was based upon a “founded belief that the alleged injur[ies] do[] not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). However, the peer review reports submitted with respect to assignors Tsaruk Sarkisian, Nunu Dzhgamaia and Tsira Gogadze were affirmed by Robert Israel, M.D., who concluded that the injuries they sustained were not related to the November 25, 2002 accident. Said peer review reports were sufficient to establish the existence of a triable issue of fact with regard to the bills submitted on behalf of said assignors (see Central Gen. Hosp., 90 NY2d at 199).

In addition, defendant’s litigation representative established that defendant timely denied bills relating to Arsen Manukyan in the amounts of $914.33, $500, $400 (dated January 27, 2003) and $300 (dated March 3, 2003) on the ground that “a prescribed authorization or assignment of benefits was not submitted and/or was not properly executed.” Thus, defendant raised an issue of fact with respect thereto (see A.B. Med. Servs. PLLC v Peerless, Ins. Co., 13 Misc 3d 25 [App Term, 2d & 11th Jud Dists 2006]; see also Presbyterian Hosp. in City of N.Y. v Aetna Cas. & Sur. Co., 233 AD2d 433 [1996]).

Accordingly, plaintiff’s motion for summary judgment is granted to the extent of awarding it partial summary judgment on the $900 and $154.30 claims relating to assignor Dejan [*3]Nikolic and, with respect to assignor Arsen Manukyan, upon the $400 claim dated February 19, 2003, the $300 claim dated April 10, 2003 and the $700 claim, and the matter is remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees thereon and for all further proceedings on the remaining claims.

Pesce, P.J., and Rios, J., concur.

Golia, J., concurs in a separate memorandum.
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT : PESCE, P.J., GOLIA and RIOS, JJ.
FIRST HELP ACUPUNCTURE, P.C.
a/a/o ARSEN MANUKYAN, TSARUK SARKISIAN,
DEJAN NIKOLIC, NUNU DZHGAMAIA,
TSIRA GOGADZE and JANELLE PHILOGENE,

Respondent,

-against-
PROGRESSIVE NORTHEASTERN INS. CO.,

Appellant.

Golia, J., concurs with the result only, in the following memorandum:

I am constrained to agree with the ultimate disposition in the decision reached by the majority. I, however, wish to note that I do not agree with certain propositions of law set forth in cases cited therein which are inconsistent with my prior expressed positions and generally contrary to my views.

In the first instance I believe that this Court cannot abrogate its mandate to insure that, at a bare minimum, a prima facie case must be presented by a plaintiff before judgment may be awarded or affirmed.

Furthermore, for the reason stated in my dissent in Ocean Diagnostic Imaging, P.C. v Lancer Ins. Co. (6 Misc 3d 62 [App Term, 2d & 11th Jud Dists 2004]), I find that unsworn reports when submitted in opposition to a motion for summary judgment are sufficient for the purpose of raising a triable issue of fact (see also Levbarg v City of New York, 282 AD2d 239, 241 [2001]).
Decision Date: June 5, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Joseph Esposito, J.), entered January 6, 2006. The order granted defendant’s motion to compel plaintiff to produce plaintiff’s assignor’s treating providers and an owner of plaintiff for depositions.

Order affirmed without costs.

In this action to recover assigned first-party no-fault benefits, defendant moved for an order compelling plaintiff to produce for a deposition Larisa Likver, D.O., an owner of plaintiff, as well as Leonid Livchits, M.D. and Ronald Pasion, a physical therapist, both of whom allegedly treated plaintiff’s assignor. Defendant claimed that
there was an issue as to whether Dr. Livchits and Mr. Pasion were employees of plaintiff or independent contractors at the time the treatment was rendered. The court granted defendant’s motion and this appeal ensued.

Although the claim forms submitted by plaintiff indicate that Dr. Livchits and Mr. Pasion were independent contractors when the treatments were rendered, plaintiff insists that these were typographical errors and that they were in fact employees of plaintiff. In support of its assertion, plaintiff annexed what purports to be W-2 forms issued by plaintiff to Dr. Livchits and Mr. Pasion. Inasmuch as CPLR 3101 (a) states, “[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof, by . . . [*2]a party, or the officer, director, member, agent or employee of a party,” the court properly ordered plaintiff to produce Dr. Likver, Dr. Livchits and Mr. Pasion for depositions (see CPLR 3101 [a] [1]; see also 7 Carmody-Wait 2d § 42:56, at 100-102; cf. CPLR 3106 [b]; Doomes v Best Tr. Corp., 303 AD2d 322 [2003]; A.M. Med. Servs., P.C. v Allstate Ins. Co., 14 Misc 3d 143[A], 2007 NY Slip Op 50384[U] [App Term, 2d & 11th Jud Dists]). To the extent plaintiff argues for the first time on appeal that it does not control the witnesses, such a
conclusory allegation is dehors the record (cf. A.M. Med. Servs., P.C. v Allstate Ins. Co., 14 Misc 3d 143[A], 2007 NY Slip Op 50384[U], supra).

Golia, J.P., Rios and Belen, JJ., concur.
Decision Date: June 4, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Eileen Nadelson, J.), entered April 5, 2005. The order denied plaintiffs’ motion for partial summary judgment.

Order affirmed without costs.

In this action by providers to recover assigned first-party no-fault benefits, plaintiffs’ motion for partial summary judgment was supported by an affirmation of plaintiffs’ counsel, an affidavit of plaintiffs’ billing manager, and various documents
annexed thereto. In opposition to the motion, defendant asserted plaintiffs’ assignors’ failure to cooperate with defendant’s investigation and plaintiffs’ failure to comply with its requests for verification. The court below denied plaintiffs’ motion and the instant appeal ensued.

On appeal, defendant asserts that the affidavit by plaintiffs’ billing manager submitted in support of their motion, failed to lay a proper foundation for the documents annexed to plaintiffs’ moving papers and that, as a result, plaintiffs failed to establish a prima facie case. We agree. The affidavit submitted by plaintiffs’ billing manager was insufficient to establish that he [*2]possessed personal knowledge of plaintiffs’ practices and procedures so as to lay a foundation for the admission, as business records, of the documents annexed to plaintiffs’ moving papers. Accordingly, plaintiffs failed to make a prima facie showing of their entitlement to summary judgment (see Bath Med. Supply, Inc. v Deerbrook Ins. Co., 14 Misc 3d 135[A], 2007 NY Slip Op 50179[U] [App Term, 2d & 11th Jud Dists]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Consequently, plaintiffs’ motion for partial summary judgment was properly denied.

In view of the foregoing, we reach no other issue.

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: June 4, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Edgar G. Walker, J.), entered on March 22, 2005. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment.

Order modified by denying defendant’s cross motion for summary judgment; as so modified, affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff’s motion for summary judgment was supported by an “affidavit” by a corporate officer of plaintiff, and various documents annexed thereto. We agree with the court’s
conclusion that the “affidavit” suffered from multiple defects, such that it cannot be determined that the affidavit was properly sworn to, thereby rendering it insufficient to establish plaintiff’s entitlement to judgment as a matter of law. Consequently, plaintiff’s motion for summary judgment was properly denied.

Defendant’s cross motion for summary judgment was premised upon the allegation that plaintiff’s assignor was injured, if at all, in a staged accident. However, defendant did not prove, as a matter of law, that the alleged injuries did not arise out of an insured incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]; Zuckerman v City of New [*2]York, 49 NY2d 557 [1980]). As a result, defendant’s cross motion seeking summary judgment should have been denied.

Golia, J.P., Rios and Belen, JJ., concur.

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Dolores L. Waltrous, J.), entered August 18, 2005. The order denied plaintiff’s motion for summary judgment.

Order affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff’s motion for summary judgment was supported by an affirmation from plaintiff’s counsel, an affidavit by a corporate officer of plaintiff and various documents annexed thereto. The affidavit executed by plaintiff’s corporate officer stated in a conclusory manner that the documents attached to plaintiff’s motion papers were plaintiff’s business records. In opposition, defendant argued, inter alia, that plaintiff’s moving papers did not proffer facts in admissible form so as to establish plaintiff’s prima facie entitlement to judgment as a matter of law. The court denied plaintiff’s motion, holding that there was an issue of fact as to whether the services were rendered by an independent contractor. The instant appeal by plaintiff ensued.

Since the affidavit submitted by plaintiff’s corporate officer was insufficient to establish that said officer possessed personal knowledge of plaintiff’s practices and procedures so as to lay a foundation for the admission, as business records, of the documents annexed to plaintiff’s moving papers, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (see Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, [*2]2d & 11th Jud Dists 2006]). Consequently, plaintiff’s motion for summary judgment was properly denied albeit on other grounds. In light of the foregoing, we reach no other issue.

Golia, J.P., Rios and Belen, JJ., concur.

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Plaintiff, as limited by its brief, appeals from that portion of an order of the Civil Court of the City of New York, Bronx County (Mitchell J. Danziger, J.), entered February 5, 2007, which granted defendant’s motion to dismiss to the extent of directing the deposition of Dr. Noel Howell.

PER CURIAM:

Order (Mitchell J. Danziger, J.), entered February 5, 2007, modified to vacate so much of the order as directed the deposition of Dr. Noel Howell, and as modified, affirmed, with $10 costs.

Defendant moved to dismiss on the ground that Dr. Noel Howell, alleged president of plaintiff provider, failed to appear for scheduled examinations under oath (EUOs). Even assuming that defendant’s letters requesting the examination of Dr. Howell constituted valid EUO requests, defendant failed to submit competent proof in admissible form to establish the dates of receipt of the subject claims, and hence, that its EUO requests were made in compliance with the time limits set forth in the verification procedures (see 11 NYCRR 65-3.5(b); 11 NYCRR 65-3.6(b); Bronx Med. Servs. P.C. v Windsor Ins. Co., 2003 NY Slip Op 50885[U][2003]). Inasmuch as noncompliance with the requests for EUOs was the sole ground for defendant’s motion to dismiss, there was no basis for Civil Court to direct a deposition of Dr. Howell.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: May 30, 2007